Osuna v. State
| Decision Date | 03 July 2018 |
| Docket Number | NO. 03-18-00239-CR,03-18-00239-CR |
| Parties | Edward Joseph Osuna, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. 73618, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
A jury found appellant Edward Joseph Osuna guilty of burglary of a habitation. See Tex. Penal Code § 30.02(a)(3). Appellant elected to have the trial court decide his punishment, see Tex. Code Crim. Proc. art. 37.07(2)(b), and the trial judge assessed appellant's punishment, enhanced pursuant to the habitual offender provision of the Penal Code, at confinement for 25 years in the Texas Department of Criminal Justice, see Tex. Penal Code § 12.42(d). In three points of error, appellant complains about error in the jury charge and challenges the imposition of court costs. We find no reversible error. However, we have found non-reversible error in the written judgment ofconviction. We will modify the judgment to correct the clerical error and, as modified, affirm the trial court's judgment of conviction.
BACKGROUND2
The jury heard evidence that Amy Mikulec and her fiancé, Luke Carrell, lived in a mobile home owned by Amy's parents, Jennifer and Danny Mikulec, on fenced-off property also owned by Jennifer and Danny. In September of 2014, Amy and Luke were in the process of moving out but still had most of their clothing and property in the mobile home. During that time, a neighbor who lived across the road, Larry Worsham, saw a man several times inside the fenced-off property.
The first time Worsham noticed the man, he was pushing a bike across the "pasture part" of the property. The man was "going the other way," so Worsham "didn't do anything at that time, didn't say anything." A couple of days later, Worsham again saw the man. This time he was pushing the bike through the gate, coming off of the property. Worsham confronted the man, who told Worsham that he was "just riding across the field" and that "he was kind of keeping an eye on the property because he had heard there had been some trouble over there." At trial, Worsham identified appellant as the man that he saw pushing the bike off of the property. Worsham testified that on that occasion, he told appellant that he was on private property and needed to leave. A few days later, Worsham again saw appellant. He was sitting between the ditch and the road "just looking at the property over there" (the Mikulecs' property). Worsham did not talk to appellant on that occasion. Then, on September 10th, Worsham was on his porch and heard Luke's truck startup. The truck was inside the gated and fenced property. He saw that the driver was wearing Luke's camouflaged jumpsuit and assumed it was Luke. However, a short time later, as he observed the driver walking around, Worsham realized that it was not Luke. Worsham confronted the man—the same man from the previous encounters, whom Worsham had identified as appellant—about being on the property. Appellant claimed that he was "taking care of some stuff" for Amy and Luke and that Amy "had hired him to watch the place." Worsham left the property and called Luke to apprise him of the situation.
Luke, who was three hours away in Smithville, called Jennifer because she lived in town, and she went to the property. When Jennifer got to the property, she saw Worsham and "a gentleman sitting on the front porch of the trailer house" whom she had never seen before.3 Jennifer asked the man who he was, and he told her his name. In court, Jennifer identified appellant as the man from the porch. She explained that she asked appellant why he was there and what business he had there. Appellant told her that "he had authorization to be there, that he was watching over the place for the owners." Jennifer asked him who gave him that authorization, and he told her that Luke and Amy had given him authorization to be there. She confronted appellant and told him that nobody had given him authorization to be there. She explicitly testified that she had not given appellant authorization to be there. Appellant, however, "tr[ied] to justify that he was where he was supposed to be." Jennifer called her husband, Danny, because she had to go work and "thought he needed to be there as well." While she waited for her husband, Jennifer called Luke to ask him ifhe had given anybody authorization to be at the mobile home. Luke informed her that he had not. When Danny arrived at the property, Jennifer left for work.
Danny testified that he also confronted appellant about his presence on the property and in the mobile home. Appellant told him that Amy had given him permission to live there to take care of the place. Danny did not believe appellant because, according to Danny, Amy and Luke would not have given permission for anyone to live there since Danny and Jennifer "own[ed] the place." Danny took a set of keys from appellant and then called the sheriff. The keys Danny took from appellant were the keys to the mobile home and the keys to Luke's truck.
Several sheriff's deputies responded to the mobile home. The first deputy, Corporal Rene DeLaRosa, made contact with appellant, asking appellant his name, which appellant provided. The deputy also asked appellant "what he was doing" and "where he lived." In response to the question about where he lived, appellant told the deputy that "only the higher above know [sic]." Corporal DeLaRosa also asked appellant where he had obtained the keys, and appellant said that he got them from Amy that morning. The deputy asked Danny to call Amy to ask if she had given appellant the keys. Danny called his daughter, and Amy told him that she did not know appellant, did not give him the keys, and did not give him permission to live there. At that point, Corporal DeLaRosa detained appellant to conduct a burglary investigation. As part of the investigation, several deputies went inside the mobile home. They observed that the TV was on, candles were lit, and clothes were scattered all over. Deputies located a wallet on the coffee table in the living room, which had appellant's identification inside. Appellant was then arrested. At the time of his arrest, appellant was wearing a military-type camouflage jumpsuit, similar to the ones strewn about the inside of the mobile home.
Amy and Luke testified about what they found upon their return to the mobile home after appellant was arrested and removed from the property. Amy said that she returned the next day and found "a mess" inside; it appeared that somebody had "rifled through [their] stuff." Their belongings were out of place, "all over the floors" so that "you could barely even walk." According to Amy, things that had been hanging on the wall had been removed and "new stuff" had been hung. Similarly, Luke testified that "every room in the trailer" was "trashed" and "tossed upside down." He explained that his military clothing, which had been packed together in a duffle bag in the closet of the spare bedroom, was all over the house. The record reflects that the clothing that appellant was wearing when he was arrested, military coveralls, belonged to Luke. Both Amy and Luke expressed that they had not left the mobile home in that condition. They also explained that their home was normally kept locked. Amy said that both the front and back doors were locked when she left. She had one set of keys to the residence with her, and the other set was in the master bedroom with the keys to Luke's truck.
Amy and Luke also testified that they discovered that items had been taken from their home. They provided a list of the missing items to the sheriff's office. Subsequently, the couple identified several property items that had been taken but had been recovered by the sheriff's department.4 Justin Kelly, the detective assigned to conduct the follow-up investigation, talked toappellant after his arrest. Investigator Kelly subsequently went back to the property and recovered the missing property items in a gym bag and pillowcase near the fence line hidden in some brush.5
Finally, in their testimony, both Amy and Luke expressed that they did not know appellant, did not give him permission to be on the property, and did not give him permission to be in the mobile home. In addition, Luke stated that he had not given appellant permission to wear his clothes, drive his truck, or take any items or clothing from the mobile home.
The State called eight witnesses at trial—Worsham, Jennifer, Danny, Amy, Luke, Corporal DeLaRosa, Deputy Staton, and Investigator Kelly—who testified to the above facts. Appellant did not testify at trial or call any witnesses on his behalf. However, he was permitted, over the State's objection, to cross examine Deputy Staton and Investigator Kelly about statements that appellant had made to them. In these statements, appellant claimed that he was riding his bike past the mobile home and saw an open door; that he became suspicious that the home had been burglarized so he went inside to investigate; that he did not know who lived there; that he did not have permission to be inside the home; that once he was inside he found some clothing, which he changed into because his clothes were dirty; and that he found the keys to the mobile home and the truck on the front lawn.
At the conclusion of trial, the court's jury charge instructed the jury regarding convicting appellant of burglary of a habitation or, if not, the lesser included offense of criminaltrespass. The jury found appellant guilty of burglary of a habitation. Because appellant had elected to have the court assess punishment upon a jury finding of guilt, the jury was released after returning the guilty verdict. Appellant pled true to the enhancement paragraphs of the indictment, and the trial court ordered a presentence investigation. Subsequently, the trial court sentenced appellant to serve 25 years in prison.
DISCUSSION
Appellant raises three...
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